How the High Court Undermined Fertility

Bryce J. Christensen and Robert W. Patterson

When the oral contraceptive was approved for sale by the Food and Drug Administration in 1960, the manufacturer of the device, G. D. Searle & Company, faced a challenge: 24 states at the time prohibited the sale of contraceptive devices and many other states prohibited the distribution or advertising of contraceptive information. The Supreme Court, however, came to the aid of the pharmaceutical giant in 1965 by striking down a Connecticut statute that prohibited the use of contraception, forcing the other states to comply and allow contraceptive devices to be sold to married couples. Searle got another boost in 1972, when the Court insisted that states must open up such sales to all persons, married or not.

That legislative and judicial history should not be overlooked, according to Martha J. Bailey of the University of Michigan, whose study of the relationship between the contraceptive pill and the decline in U.S. fertility demonstrates that state regulation of contraception prior to 1965 tempered both contraceptive use and fertility-rate declines. Her findings not only counter the case made by her fellow economists that downplay the role of the Pill in fertility decline, but also suggest that the replacement of the child-rich family of the 1950s with the current two-child family norm would not have happened without the overreach of the Court in 1965.

Looking at data from the 1955 Growth of American Families study, as well as the 1965 and 1970 waves of the National Fertility Surveys, Bailey found that across the entire sample, only 15 percent of married black women and 25 percent of married white women reported having used the Pill in 1965. By 1970, those percentages had increased to 50 and 60 percent, respectively. However, among married women living in states that had banned contraceptive sales, the 1965 numbers were 3 to 8 percentage points (or 20 to 25 percent) lower. By 1967, the differences between women in states whose bans were struck down by the Court disappeared completely.

The pattern associated with state bans was even stronger in the years before the 1965 Griswold decision. In another set of tests, Bailey found that among married women living in states with bans, those reporting ever using the birth-control pill was 25 to 30 percent lower than their peers in states without a ban, a correlation that remained statistically significant and robust across specifications and comparison groups.

Moreover, in these same states, Bailey found that marital fertility rates declined more slowly between 1958 and 1965 relative to states without contraceptive bans. “Without bans on the sales of contraception, the marital fertility rate would have been between 8 percent lower in states with sales bans and 4 percent lower in the United States as a whole.” Her data also suggests that had the contraceptive pill not been available throughout the 1960s, marital fertility rates for the decade would have been significantly higher. She estimates that the availability of the Pill is responsible for at least 40 percent of the decline in U.S. marital fertility between 1955 and 1965.

Bailey doesn’t draw the conclusion, but her findings suggest that while the Pill may have enriched business profits, it has robbed families and the nation as a whole of resources that really matter.